Tort Law For paralegalsCH02

Chapter 2
Intentional Torts
 Chapter Objectives:
 Introduce the basic elements of intentional
torts
 Show how intentional torts differ from torts
involving negligence
 Point out the important types of information
that a paralegal should obtain from a client
 Describe the elements of intentional torts
to property
 Explain how an intentional tort is proved at
trial
Tort Law for Paralegals, Fifth Edition
(c) 2016 by Neal R. Bevans
Intentional Tort
 A civil action based on a defendant’s

purposeful, intentional act that causes
harm, as opposed to a defendant’s act
that causes harm through negligence.

The Problem with Intentional
Torts
 The vast majority of civil lawsuits involve
car wreck cases, otherwise known as
personal injury cases.

The Problem with Intentional
Torts
 The problem with intentional torts is that
there is a large overlap between this
area of law and criminal law.

Assault and Battery
 These two torts are linked very closely in

that their elements are similar.
 In many ways, assault is an attempted
battery.

Assault
 When the defendant causes the plaintiff

to have fear or apprehension of a
harmful/offensive contact.

The Elements of Assault
The plaintiff must show:

 That the defendant intentionally caused
the plaintiff to have
 Fear or apprehension of a
 Harmful or offensive contact

Elements
 The points raised by the plaintiff in his

complaint that must also be proved at
trial; failure to prove these points will
often result in a dismissal of the plaintiff’s
case.

Prima Facie Evidence
 If the plaintiff presents evidence about

each element, then he has made a
prima facie or basic case against the
defendant.

Assault
 When a person assaults another person,

he causes the victim to undergo fear or
apprehension that he is about to receive
a harmful or offensive contact.

Elements of Assault
Element Proof
Defendant did knowingly Testimony that the defendant
and intentionally acted voluntarily
Cause apprehension Plaintiff’s testimony about his
reaction to the defendant’s
actions
Of a harmful or offensive Plaintiff’s testimony about what
contact contact defendant made

Touching Not Required
 There is no touching in an assault.

The Defendant’s Actions are
Intentional
 The word ‘intent’ carries a very specific
meaning in law.
 When a person acts intentionally, it does
not mean that he had a specific result in
mind.

Intentional Actions
 The test of the defendant’s intent is not

what the ultimate result is; the test for
intent is whether the defendant acted
voluntarily and knowingly.

Fear or Apprehension
 In an assault, actual fear is not a

requirement.
 The victim must simply be apprehensive
of the contact.

 Since awareness is a requirement, a

victim cannot be assaulted if he or she is
unconscious.

 Unconscious people cannot be fearful or

apprehensive

 The threat must be imminent

Harmful or Offensive Contact
 The intended contact must be harmful or

offensive.

 There is no requirement that the

intended victim would be seriously
injured had the contact occurred.

The Reasonable Person
Standard
 Whether a touching is harmful or
offensive is seen from the viewpoint of a
hypothetical, reasonable person, not the
subjective feelings of the actual people
involved.

The Reasonable Person
Standard
 Would a reasonable person have
considered this attempted contact to be
harmful or offensive? If the answer is
yes, then an assault has occurred.

Meaning of Apprehension
 When we say apprehension, we

essentially mean anticipation, knowledge
or belief.

The Elements of Battery
 That the defendant intentionally

 Made contact with the plaintiff that was
 Harmful or offensive

Defendant Acted Intentionally
 If the defendant accidentally strikes

another person that is not a battery.

What Do We Mean by
“Contact”?
 Any contact with the plaintiff, no matter
how slight

Making Contact with Weapons
or Other Objects
 When a defendant uses a weapon to
make harmful or offensive contact with
the plaintiff this is a battery

The Connection between the
Defendant’s Actions and Ultimate
Harm
 Proximate cause requires that there is a
strong connection between the
defendant’s actions and the ultimate
harm to the plaintiff.

Proximate Cause
 The more remote the connection

between the defendant’s actions and the
ultimate harm, the less likely that the
defendant will be liable.

 Again determined by the reasonable

person standard, not the subjective
feelings and impressions of the actual
parties involved.

False Imprisonment
The plaintiff claims:

 that he was intentionally
 unlawfully
 restrained against his will
 by the use of force or the threat of force.

False Imprisonment
 Most false imprisonment lawsuits are

brought by people who are detained in
stores or malls under suspicion of
committing shoplifting.

Discussing the Elements:
Restraint Must be Intentional
 The person restraining the plaintiff must
be aware that he/she is doing so.

Unlawful Restraint
 The defendant must act without legal

authority.
 If he/she has legal authority, there is no
false imprisonment.

A Person Can Lawfully
Restrain Another:
To stop someone from injuring himself or
others
To stop someone from damaging property
To prevent someone from committing a
crime or to detain him if he has already
committed a crime

Holding Personal Property
Hostage
 It is possible to commit false
imprisonment by holding a someone’s
personal property and refusing to
release it.

Defenses to False
Imprisonment
 There are several defenses available to
a claim of false imprisonment.

Failure to Prove the Elements
 One possible defense is to attack the

individual elements of the cause of
action by claiming that the restraint was
lawful, etc.

Consent
 If the plaintiff voluntarily agrees to go

with a person, then he/she has
consented to the restraint and no action
is authorized.

Alienation of Affections
 Interference with the marriage by the

defendant
 The subsequent loss of affection by one
spouse for another
 Caused by this interference
 And the interference was motivated by
malice.

Alienation of Affections
 This action is also known as a “heart

balm” action.

Intentional Infliction of
Emotional Distress
 Intentional or reckless conduct
 Which caused the plaintiff severe
emotional distress
 By defendant’s outrageous conduct

Intentional or Reckless
Conduct
 the defendant must act with the specific
intention of inflicting emotional distress
on the plaintiff or act with such utter
recklessness that emotional distress
would naturally result.

Bystander Emotional Distress
 In some jurisdictions, a bystander or a

witness to a horrific event may be
entitled to bring a claim of “bystander
emotional distress.”

Causation
 The plaintiff will have to prove that there

is a direct connection between the
emotional distress and the defendant’s
actions.

Emotional Distress: What Is
It?
 The plaintiff must show that the
defendant’s actions were such that a
hypothetical, reasonable person would
have suffered emotional distress if he
had been subjected to the same
conduct.

The Defendant’s Actions Were
Outrageous
 The defendant’s actions must be
“intolerable” or “beyond society’s
accepted standards of decency and
morality.”

Malicious Prosecution
 Defendant brings or continues a criminal

charge against the plaintiff
 The case terminates in the plaintiff’s
favor
 The defendant acted with malice in
bringing the charge
 There was no probable cause for the
charge

Defendant Brings or Continues a
Criminal Charge Against the
Plaintiff
 Malicious prosecution is based on the

idea that a private citizen is using the
court system for unlawful purposes, such
as harassment or intimidation.

The Case Terminates in the
Plaintiff’s Favor
 The plaintiff can only bring this suit when
he/she can prove that the criminal action
ended favorably.

Termination in the Plaintiff’s
Favor
 Showing that the prosecutor or judge
dismissed the case against the plaintiff
will prove this element.

The Defendant Acted with
Malice in Bringing the Charge
 The plaintiff can show that the defendant
was biased against him or hated him.

There Was No Probable
Cause for the Charge
 This prevents frivolous lawsuits.

Tort Immunity for Families
 Family members are protected from

lawsuits filed by other family members.
 There are important exceptions to this
immunity.

Intentional Torts Involving
Property: Trespassing
 The (intentional), unprivileged
 Entry onto the plaintiff’s real property
 Without permission

Discussing the Elements:
Intent
 Many states do not require intent on the
defendant’s part before he can be liable
for the tort.
 Trespass can be a strict liability tort.

Strict Liability Torts
 A strict liability tort is one in which the

intent of the defendant is irrelevant to the
issue of liability.

Unprivileged
 If the trespass occurred through

operation of law, or because of public
safety concerns, a civil suit for trespass
will fail.
 These entries are privileged.

Entry onto the Plaintiff’s Real
Property
 Entry refers to any part of the
defendant’s body penetrating an
imaginary wall that rises from the
boundaries of the plaintiff’s land.

Proving Entry
 Proving entry can sometimes be difficult.

 Obviously the physical presence of the
defendant is an entry, but what about:
 Smells?
 Sounds?

Without Permission
 A person who enters the plaintiff’s

premises without approval or consent
has done so without permission.

Nuisance Actions
 When fumes, odors or noises from

defendant’s property make it impossible
for the plaintiff to enjoy his own property

Public Nuisance vs. Private
Nuisance
 A public nuisance is some condition that
affects rights of citizens in general.
 A private nuisance affects a specific
citizen.

Private Nuisance
 The defendant maintains a condition that

 Substantially interferes with the plaintiff’s
right
 To use and enjoy his property

Damages and Injunctions
 An injunction is a court order that tells a

person to either stop carrying out a
specific action, or, in some cases, to do
a specific thing.

Damages and Injunctions
 A finding of contempt means that the

judge could order a monetary fine
assessed against the person or even
order that he or she spend time in jail.

New Lawsuits under
Environmental Theories
 New federal statutes have made the use
of nuisance actions even more valuable
to those claiming that large corporations
are polluting ground water or dumping
hazardous waste.

Torts to Personal Property:
Trespass to Chattels
 A “chattel” is an ancient term for
personal property.
 A ‘trespass to chattels’ is a suit based on
the defendant’s interference with the
owner’s rights to his personal property.


Tort Law For paralegalsCH02

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Tort Law For paralegalsCH02

Uploaded by

Copyright:

Available Formats

Chapter 2

 A civil action based on a defendant’s

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 These two torts are linked very closely in

Tort Law for Paralegals, Fifth Edition

 When the defendant causes the plaintiff

Tort Law for Paralegals, Fifth Edition

The plaintiff must show:

Tort Law for Paralegals, Fifth Edition

 The points raised by the plaintiff in his

Tort Law for Paralegals, Fifth Edition

 If the plaintiff presents evidence about

Tort Law for Paralegals, Fifth Edition

 When a person assaults another person,

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 There is no touching in an assault.

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 The test of the defendant’s intent is not

Tort Law for Paralegals, Fifth Edition

 In an assault, actual fear is not a

Tort Law for Paralegals, Fifth Edition

 Since awareness is a requirement, a

Tort Law for Paralegals, Fifth Edition

 Unconscious people cannot be fearful or

Tort Law for Paralegals, Fifth Edition

 The threat must be imminent

Tort Law for Paralegals, Fifth Edition

 The intended contact must be harmful or

Tort Law for Paralegals, Fifth Edition

 There is no requirement that the

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 When we say apprehension, we

Tort Law for Paralegals, Fifth Edition

 That the defendant intentionally

Tort Law for Paralegals, Fifth Edition

 If the defendant accidentally strikes

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 The more remote the connection

Tort Law for Paralegals, Fifth Edition

 Again determined by the reasonable

Tort Law for Paralegals, Fifth Edition

The plaintiff claims:

Tort Law for Paralegals, Fifth Edition

 Most false imprisonment lawsuits are

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 The defendant must act without legal

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 One possible defense is to attack the

Tort Law for Paralegals, Fifth Edition

 If the plaintiff voluntarily agrees to go